JERVIS (Migration)

[2023] AATA 245

JERVIS (Migration) [2023] AATA 245 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kerri Louise JERVIS
Mr Joseph Thomas SUMNER

REPRESENTATIVE:  Mr Patrick Tien Quan (MARN: 0635149)

CASE NUMBER:  1925915

HOME AFFAIRS REFERENCE(S):          BCC2018/4929639

MEMBER:George Hallwood

DATE:9 February 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.233 of Schedule 2 to the Regulations.

Statement made on 09 February 2023 at 4:03pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Spa Manager – nomination approved upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 7 November 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Spa Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the related nomination was refused.

6. The applicants appeared before the Tribunal on 9 February 2023 to give evidence and present arguments. As this was a combined hearing with that of the related nominator, Mr Edward Kim Poh Fong appeared before the Tribunal on behalf of the nominator, Olive Grove Enterprises Pty Ltd, case number 1921142 to give oral evidence.

7. The applicants were represented in relation to the review.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of cl 187.233.

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

12. The nomination for the position of Spa Manager with Olive Grove Enterprises Pty Ltd, to which this application relates, was approved by the Tribunal on 9 February 2023. The position is in the Direct Entry stream and located in regional Australia. The position is the one that was the subject of the declaration made as part of the current visa application and identifies Ms Jervis in relation to the position.

13. The Tribunal finds:

    ·Olive Grove Enterprises Pty Ltd is the person who made the nomination and will employ Ms Jervis;

    ·The nomination has not been withdrawn and has now been approved;

    ·As has been documented in the related nomination decision, there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B);

    ·The nominator confirmed at the combined hearing, and the Tribunal is satisfied, that the position is still available to the applicant;

    ·Because the nomination of the position was approved on 9 February 2023 and the visa application was made on 7 November 2018; the visa application was made no more than six months after the nomination of the position was approved.

14. Therefore, cl 187.233 is met.

    CONCLUDING PARAGRAPHS

15. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

16. The secondary applicant, Mr Sumner, made a valid combined application with the primary applicant. His only claim toward satisfying this class of visa for the purpose of this application was as a member of Ms Jervis’ family unit. The Tribunal recommends that Mr Sumner’s application be reconsidered in the light of Ms Jervis’ application meeting cl 187.233 of Schedule 2 of the Regulations.

    DECISION

17. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.233 of Schedule 2 to the Regulations.

    George Hallwood
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.